ELR Citation: ELR 20211
No(s). s. 04-4071, -4073 (10th Cir. Sep 8, 2005)

The court remands for a de novo proceeding a district court decision that counties lacked a valid right-of-way for the construction of highways across federal lands managed by the Bureau of Land Management (BLM). At issue is "R.S. 2477," a statute enacted by Congress in 1866 that grants "the right of way for the construction of highways over public lands, not reserved for public uses." The parties shall be permitted to introduce evidence including, but not limited to, the administrative record before the BLM in making its determinations. In that proceeding, the counties will bear the burden of proof on their R.S. 2477 claims. The district court shall determine whether the road work undertaken by the counties in 1996 constituted a trespass, whether the counties have a valid R.S. 2477 claim with respect to the 15 disputed routes, and whether Kane County exceeded the scope of its right-of-way with respect to Skutumpah Road. The district court should consider evidence regarding identifiable destinations as part of its overall determination of whether a contested route satisfies the requirements under state law for recognition as a valid R.S. 2477 claim. In addition, a 1910 coal withdrawal was not a "reservation" for purposes of R.S. 2477. The withdrawal did not dedicate the subject lands to a specific public use, but instead left the land open to private appropriation, while withholding it from appropriation as a coal resource.